TWENTY GUIDELINES ON FORCED RETURN

TWENTY GUIDELINES ON FORCED RETURN September 2005 1

TABLE OF CONTENT Preliminary Note.........5 Twenty Guidelines of the Commitee of Ministers of the Council of Europe on Forced Return Preamble............7 Chapter I Voluntary return Guideline 1. Promotion of voluntary return...10 Chapter II The removal order Guideline 2. Adoption of the removal order...12 Guideline 3. Prohibition of collective expulsion...16 Guideline 4. Notification of the removal order...18 Guideline 5. Remedy against the removal order...20 Chapter III Detention pending removal Guideline 6. Conditions under which detention may be ordered...24 Guideline 7. Obligation to release where the removal arrangements are halted...28 Guideline 8. Length of detention...30 Guideline 9. Judicial remedy against detention...32 Guideline 10. Conditions of detention pending removal...34 Guideline 11. Children and families...36 Chapter IV - Readmission Guideline 12. Cooperation between states...38 Guideline 13. States obligations...40 Guideline 14. Statelessness......42 Chapter V Forced removals Guideline 15. Cooperation with returnees...44 Guideline 16. Fitness for travel and medical examination...46 Guideline 17. Dignity and safety...48 Guideline 18. Use of escorts...50 Guideline 19. Means of restraint...52 Guideline 20. Monitoring and remedies...56 Appendix Definitions......60 3

PRELIMINARY NOTE On 4 May 2005, at the 925th Meeting of the Ministers Deputies, the Committee of Ministers of the Council of Europe on one hand adopted twenty Guidelines on forced return and, on the other hand, took note of the comments on these guidelines drafted by the Ad hoc Committee of Experts on Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR). Although only the Guidelines have been formally adopted by the Committee of Ministers, in this publication both texts have been put into one single document in order to make the Guidelines more readable and easier to understand. To prevent any confusion, only the text formally adopted by the Committee of Ministers has been highlighted in grey. 5

TWENTY GUIDELINES OF THE COMMITTEE OF MINISTERS OF EUROPE ON FORCED RETURN 1 The Committee of Ministers, Recalling that, in accordance with Article 1 of the European Convention on Human Rights, member states shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the Convention; Recalling that everyone shall have the right to freedom of movement in accordance with Article 2 of Protocol No. 4 to the Convention; Recalling that member states have the right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens on their territory; Considering that, in exercising this right, member states may find it necessary to forcibly return illegal residents within their territory; Concerned about the risk of violations of fundamental rights and freedoms which may arise in the context of forced return; Believing that guidelines not only bringing together the Council of Europe s standards and guiding principles applicable in this context, but also identifying best possible practices, could serve as a practical tool for use by both governments in the drafting of national laws and regulations on the subject and all those directly or indirectly involved in forced return operations; Recalling that every person seeking international protection has the right for his or her application to be treated in a fair procedure in line with international law, which includes access to an effective remedy before a decision on the removal order is issued or is executed, 1. Adopts the attached guidelines and invites member states to ensure that they are widely disseminated amongst the national authorities responsible for the return of aliens. 2. Considers that in applying or referring to those guidelines the following elements must receive due consideration: a. none of the guidelines imply any new obligations for Council of Europe member states. When the guidelines make use of the verb shall this indicates only that the obligatory character of the norms corresponds to already existing obligations of member states. In certain cases however, the guidelines go beyond the simple reiteration of existing binding norms. This is indicated by the use of the verb should to indicate where the guidelines constitute recommendations addressed to the member states. The guidelines also identify certain good practices, which appear to represent innovative and promising ways to reconcile a return policy with full respect for human rights. States are then encouraged to seek inspiration from these practices, which have been considered by the Committee of Ministers to be desirable; 1 When adopting this decision, the Permanent Representative of the United Kingdom indicated that, in accordance with Article 10.2c of the Rules of Procedure for the meetings of the Ministers' Deputies, he reserved the right of his Government to comply or not with Guidelines 2, 4, 6, 7, 8, 11 and 16. 7

b. nothing in the guidelines shall affect any provisions in national or international law which are more conducive to the protection of human rights. In particular, in so far as these guidelines refer to rights which are contained in the European Convention on Human Rights, their interpretation must comply with the caselaw of the European Court of Human Rights; c. the guidelines are without prejudice to member states reservations to international instruments 8

COMMENTARY Background 1. The origin of these Guidelines lies in Parliamentary Assembly Recommendation 1547(2002) on expulsion procedures in conformity with human rights and enforced with respect for safety and dignity. In its reply to Recommendation 1547(2002), the Committee of Ministers of the Council of Europe expressed its support for the idea put forward by the Parliamentary Assembly to draw up a code of good conduct for expulsion procedures that would make it possible to lay down the various guidelines developed by different bodies within the Council of Europe in one pragmatic text to be used by governments when developing national legislation and regulations on the subject. The Committee of Ministers also found that such a text should also be a useful source of guidance for those directly or indirectly involved in expulsion measures and would provide an opportunity to increase the visibility of the Council of Europe s activities in this field. 2. In its Decision No. CM/859/09092003, the Committee of Ministers requested the Ad hoc Committee of Experts on Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) to prepare a draft set of non-binding guidelines on expulsion procedures with the assistance of a Working Party composed of six experts appointed by the CAHAR, two experts appointed by the Steering Committee for Human Rights (CDDH) and two experts appointed by the European Committee on Migration (CDMG). The Working Party held four meetings that took place on 11-12 December 2003, on 30-31 March 2004, on 1-2 July 2004 and on 1-3 September 2004. Subsequently the draft Guidelines were discussed at the 55th Meeting of CAHAR (20-22 October 2004) who decided to forward the draft Guidelines to the Committee of Ministers for adoption. It adopted the Guidelines at the 925th Meeting of the Ministers Deputies on 4 May 2005. 3. In order to identify existing standards developed within the Council of Europe that have a bearing on expulsion matters, detailed research was carried out, in particular with regard to the case-law of the European Court of Human Rights and the jurisprudence of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter CPT ). 4. With a view to identifying certain relevant good practices, a questionnaire on forced return, prepared by the Working Party, was sent to the members of the CAHAR. Answers to the questionnaire were provided by 27 member states. 5. The Working Party on Expulsion Procedures held a subsequent meeting on 17-19 January 2005 with a view to preparing these comments. Scope of application The Guidelines apply to procedures leading to the expulsion of non-nationals from the territory of members states of the Council of Europe. Refusals to enter the national territory at the border are not included in their scope of application, although certain norms restated in the Guidelines are applicable to such decisions. Reservations: If in the adoption process of the Guidelines by the Committee of Ministers of the Council of Europe, a member state declares that it reserve the rights of its government, in accordance with the Rules of Procedure for the meetings of the Minister's Deputies, to comply or not with some Guidelines, the effect of such declaration shall extend to the commentaries that relate to the Guidelines concerned. 9

Chapter I Voluntary return Guideline 1. Promotion of voluntary return The host state should take measures to promote voluntary returns, which should be preferred to forced returns. It should regularly evaluate and improve, if necessary, the programmes which it has implemented to that effect. 10

COMMENTARY 1. Voluntary return is preferable to forced return, and it presents far fewer risks with respect to human rights. Therefore it is recommended to host states to promote voluntary return, in particular by affording the returnee a reasonable time for complying voluntarily with the removal order, by offering practical assistance such as incentives or meeting the transport costs, by providing complete information to the returnee, in a language he/she can understand, about the existing programmes of voluntary return, in particular those of the International Organization for Migration (IOM) and other similar organisations, which the host states have been encouraged to set up and to develop (see Parliamentary Assembly Recommendation 1237(1994) on the situation of asylum-seekers whose asylum applications have been rejected, para. 8, ix, b); and, with respect to the role of the IOM, the reply of the Committee of Ministers adopted on 21 January 2004 at the 869th Meeting of the Ministers Deputies to Parliamentary Assembly Recommendation 1607(2003) on activities of the IOM (CM/AS(2004)Rec1607 final). 2. It is not the purpose of these Guidelines to detail the variety of programmes which states have adopted to facilitate and promote the voluntary compliance by foreigners with removal orders which they have been served with. It could be recalled however that forced return should be considered to be less desirable than voluntary return. It is also important that persons residing illegally on the territory receive proper information about the programmes which exist, for instance by brochures containing that information in different languages. States could moreover be encouraged to regularly update and amend their voluntary return programmes in the light of experience gained and the experience of other states with similar programmes. The use of indicators could contribute to this objective. 11

Chapter II The removal order Guideline 2. Adoption of the removal order Removal orders shall only be issued in pursuance of a decision reached in accordance with the law. 1. A removal order shall only be issued where the authorities of the host state have considered all relevant information that is readily available to them, and are satisfied, as far as can reasonably be expected, that compliance with, or enforcement of, the order, will not expose the person facing return to: a. a real risk of being executed, or exposed to torture or inhuman or degrading treatment or punishment; b. a real risk of being killed or subjected to inhuman or degrading treatment by non-state actors, if the authorities of the state of return, parties or organisations controlling the state or a substantial part of the territory of the state, including international organisations, are unable or unwilling to provide appropriate and effective protection; or c. other situations which would, under international law or national legislation, justify the granting of international protection. 2. The removal order shall only be issued after the authorities of the host state, having considered all relevant information readily available to them, are satisfied that the possible interference with the returnee s right to respect for family and/or private life is, in particular, proportionate and in pursuance of a legitimate aim. 3. If the state of return is not the state of origin, the removal order should only be issued if the authorities of the host state are satisfied, as far as can reasonably be expected, that the state to which the person is returned will not expel him or her to a third state where he or she would be exposed to a real risk mentioned in paragraph 1, sub-paragraph a. and b. or other situations mentioned in paragraph 1, sub-paragraph c. 4. In making the above assessment with regard to the situation in the country of return, the authorities of the host state should consult available sources of information, including non-governmental sources of information, and they should consider any information provided by the United Nations High Commissioner for Refugees (UNHCR). 5. Before deciding to issue a removal order in respect of a separated child, assistance in particular legal assistance should be granted with due consideration given to the best interest of the child. Before removing such a child from its territory, the authorities of the host state should be satisfied that he/she will be returned to a member of his/her family, a nominated guardian or adequate reception facilities in the state of return. 6. The removal order should not be enforced if the authorities of the host state have determined that the state of return will refuse to readmit the returnee. If the returnee is not readmitted to the state of return, the host state should take him/her back. 12

COMMENTARY 1. The first sentence of this Guideline refers to the prohibition on arbitrariness in the adoption of removal orders, as an essential guarantee against the risk of discrimination in the enjoyment of the rights and freedoms of the European Convention on Human Rights. 2. It states that the decision to return an alien must be in pursuance of a decision reached in accordance with law. This language has the same meaning as in Article 1 of Protocol No. 7 ECHR, which states that An alien lawfully resident in the territory of a state shall not be expelled therefrom except in pursuance of a decision reached in accordance with law. As stated in the explanatory report to this Protocol, the decision therefore must be taken by the competent authority in accordance with the provisions of substantive law and with the relevant procedural rules (para. 11). The scope of application ratione personae of Article 1 of Protocol No. 7 ECHR is narrower than that of these Guidelines, however the Guidelines take the view that this elementary guarantee should be afforded to all persons subject to an expulsion measure, whichever their administrative status ( lawful resident or not) and whether or not the proposed removal order would contravene an individual s right under the European Convention on Human Rights. 3. The rest of the Guideline is based on the idea that, as the host state shall not return aliens under its jurisdiction in circumstances as defined in paragraph 1 of this Guideline, the removal order shall only be adopted if the host state is satisfied as far as can reasonably be expected on the basis of information readily available to them, that none of these circumstances are present. Of course, the addressee of the removal order may seek to have the order suspended, and possibly annulled, by exercising his/her right to an effective remedy against the decision to return him/her (see Guideline 5). However the Guideline favours a more preventive approach, with a view to limiting the number of cases where these remedies shall have to be pursued. Paragraph 1: 1. The requirement formulated in indent a) of the first paragraph of this Guideline follows from the caselaw of the European Court of Human Rights according to which expulsion by a Contracting State may give rise to an issue under Article 3 [ECHR], and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to expel the person in question to that country (Eur. Ct. HR, Soering v. the United Kingdom judgment of 7 July 1989, Series A No. 161, p. 35, para. 88, Eur. Ct. HR, Chahal v. the United Kingdom judgment of 15 November 1996 (Appl. No. 22414/93), para. 74). The prohibition of expulsion extends to situations where a person risks being condemned to the death penalty in violation of Protocol No. 13 to the Convention. 2. With respect to the risk of being subjected to torture, the prohibition of imposing a person to return is also stipulated in Article 3(1) of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature, ratification and accession by the UN General Assembly Resolution 39/46 of 10 December 1984. The European Court of Human Rights also has ruled that the implementation of the removal order where the vital medical treatment he/she is following would be interrupted may, under certain exceptional circumstances, amount to an inhuman treatment (Eur. Ct. HR, D. v. the United Kindgom judgment of 2 May 1997 (Appl. No. 30240/90); Bensaïd v the United Kingdom judgment of 6 February 2001 (Appl. No. 44599/98)). 3. The European Court of Human Rights has not decided that expelling a person to a country where he/she runs the risk of being sentenced to life imprisonment without any possibility of early release constitutes a violation of Article 3 ECHR. However, it found that such a situation may raise an issue under that Article 2. See also Recommendation Rec(2003)23 of the Committee of Ministers to member states on the management by prison administrations of life sentence and other long-term prisoners. 2 Eur. Ct. HR, Weeks v. the United Kingdom judgment of 2 March 1987, Series A No. 114; Eur. Ct. HR, Nivette v. France (dec.), No. 44190/98, 14 December 2000; Eur. Ct. HR, Sawoniuk v. the United Kingdom (dec.), No. 63716/00, 29 May 2001 (where, citing the case-law of the European Commission on Human Rights (Weeks v. the United Kingdom, No. 9787/82, Commission Report 12 December 1993, 72, and Kotalla v. the Netherlands, Appl. No. 7994/77, Commission decision of 6 May 1978, DR 14, p. 238), the Court notes that the Commission has expressed the view that a life sentence without any possibility of release might raise issues of inhuman treatment ); Eur. Ct. HR, S. Einhorn v. France, dec. of 16 October 2001 (Appl. No. 71555/01), 27. 13

4. With regard to indent b), it could be recalled that the European Court of Human Rights noted that the protection afforded by Article 3 ECHR extends to situations where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection (H.L.R. v. France, judgment of 29 April 1997 (Appl. No. 24573/94), para. 40). The formulation chosen takes into account that, under the definition given in public international law, torture is a notion reserved to acts by state agents or private agents acting at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity (Article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of 10 December 1984). 5. The requirement formulated in indent c), reflects, in particular, the principle of non refoulement as set out in Article 33(1) of the 1951 Convention relating to the Status of Refugees. States are also reminded of the existence of international instruments relating to subsidiary protection. Indent c) also takes into account the case-law of the the European Court of Human Rights which has considered that it cannot be ruled out that an issue might exceptionally be raised under Article 6 of the Convention by [a decision to return a person] in circumstances where the [returnee] has suffered or risks suffering a flagrant denial of justice in the requesting country (see the Soering judgment cited above, p. 45, 113, and, mutatis mutandis, the Drozd and Janousek v. France and Spain judgment of 26 June 1992, Series A No. 240, p. 34, 110) 3. Paragraph 2: 1. This paragraph aims at protecting the right to respect for family and/or private life of the returnee as well as his/her right to family life when he/she has developed a family life in the host country. This requirement results from an important case-law of the European Court of Human Rights, based on Article 8 ECHR 4. 2. It should also be noted that, in a specific case, the European Court of Human Rights has found that Article 8 ECHR was violated where an expulsion took place which made impossible the participation of the expelled person to proceedings for which his/her presence is indispensable (Eur. Ct. HR, Ciliz v. the Netherlands judgment of 11 July 2000 (para. 71)). 3. In implementing the requirements of this case-law in their national regulations, the member states of the Council of Europe could seek inspiration from Recommendation Rec(2000)15 of the Committee of Ministers to the Member States of the Council of Europe concerning the security of residence of long-term migrants and, to a certain extent, from Recommendation 1504 (2001) of the Parliamentary Assembly of the Council of Europe concerning the non-expulsion of long-term immigrants. Paragraph 3: The 3rd paragraph of this Guideline follows from the inadmissibility decision of 7 March 2000 reached by the European Court of Human Rights in the case of T.I. v. the United Kingdom (Appl. No. 43844/98), where the Court considered that The indirect removal [ ] to an intermediate country, which is also a contracting state, does not affect the responsibility of the United Kingdom to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Article 3 of the Convention, and which emphasized the obligation of the host state to ensure that there are effective procedural safeguards of any kind protecting the applicant from being removed to a third country. It is at the discretion of the host state to decide on the way it verifies the nature of the safeguards operated in the state of return. This would be even more valid where the state to which the returnee is to be returned, and from where he/she fears being expelled to a third state, is not a member state of the Council of Europe bound by the ECHR. It will be noted that the Committee against Torture (CAT) adopts the same interpretation of Article 3 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of 10 December 1984, according to which No state Party shall expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture (see, in the recent case-law, decision of 11 November 2003 on communication No. 153/2000, R.T. v. Australia, point 6.4.). 3 Eur. Ct. HR, S. Einhorn v. France, dec. of 16 October 2001 (Appl. No. 71555/01), 32. 4 Eur. Ct. HR, Moustaquim v. Belgium judgment of 18 February 1991; Eur. Ct. HR, Beldjoudi v. France of 16 March 1992; Eur. Ct. HR, Nasri v. France judgment of 13 July 1995; Eur. Ct. HR, C. v. Belgium, 7 August 1996; Eur. Ct. HR, Ezzoudhi v. France judgment of 13 February 2001; Eur. Ct. HR (1st Sect.), Amrollah v. Denmark judgment of 11 July 2002, Appl. No. 56811/00; Eur. Ct. HR, Boultif v. Switzerland judgment of 2 August 2001, Appl. No. 54273/00; Eur. Ct. HR, Benhebba v. France judgment of 19 June 2003, Appl. No. 53441/99, para. 32; Eur. Ct. HR, Mokrani v. France, judgment of 15 July 2003, Appl. No. 52206/99, para. 30-32. 14

Paragraph 4: According to this Guideline, the assessement referred to in Paragraphs 1 to 3 should be made by the national authorities of the host state before issuing a removal order. In its 4th paragraph, the Guideline adds that in making the required verifications, the authorities of the host state should consult reliable available sources of information. In this respect it could be noted that, in the Jabari v. Turkey judgment of 11 July 2000 (Appl. No. 40035/98), the Court found that it must give due weight to the UNHCR's conclusion on the applicant's claim in making its own assessment of the risk which would face the applicant if her deportation were to be implemented. Paragraph 5: The first sentence of the paragraph, concerning the removal of separated children, derives from Articles 3(1) and 24 of the Convention on the Rights of Child, adopted and opened for signature by the United Nations General Assembly in its Resolution 44/25 of 20 November 1989. The requirement that the child be provided with legal and other appropriate assistance is formulated in Article 37 (d) of the Convention on the Rights of the Child in all the situations where the child is deprived from his liberty. Paragraph 6: The recommendation contained in this paragraph aims at avoiding a situation where foreigners are being put in orbit, i.e., they are obliged to leave the country where they are found without an assurance that they will be able to enter another country. In the case of Harabi v. the Netherlands, the European Commission on Human Rights recalled that it held that the repeated expulsion of an individual, whose identity was impossible to establish, to a country where his admission is not guaranteed, may raise an issue under Article 3 of the Convention ( ). Such an issue may arise, a fortiori, if an alien is, over a long period of time, deported repeatedly from one country to another without any country taking measures to regularise his situation (Appl. No. 10798/84, dec. of 5 March 1986, DR 46, p. 112 ). The host state, the state of origin and the state of return have a joint responsiblity to ensure that such situations do not occur. Guideline 2 paragraph 6 and Guidelines 12 (cooperation between states) and 13 (States obligations) therefore must be seen as complementary and mutually supportive. 15

Guideline 3. Prohibition of collective expulsion A removal order shall only be issued on the basis of a reasonable and objective examination of the particular case of each individual person concerned, and it shall take into account the circumstances specific to each case. The collective expulsion of aliens is prohibited. 16

COMMENTARY 1. This Guideline restates the significance attached by the European Court of Human Rights to Article 4 of Protocol No. 4 to the ECHR. This case-law provi des that collective expulsion, within the meaning of Article 4 of Protocol No. 4, is to be understood as any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien. (see the inadmissibility decision of 23 February 1999 in the case of Andric v. Sweden (Appl. No. 45917/99), unpublished). 2. This rule does not prohibit the material organisation of departures of groups of returnees, but the removal order must be based on the circumstances of the individual who is to be removed, even if the administrative situations of the members of that group are similar or if they present certain common characteristics. 3. It may not be sufficient however to adopt individual removal orders, if the stereotypical character of the reasons given to justify the notification of a removal order or the arrest to ensure compliance with that order, or other factors, indicate that a decision may have been taken in relation to the removal from the territory of a group of aliens, without regard to the individual circumstances of each member of the group (Eur. Ct. HR (3rd Sect.), Conka v. Belgium judgment of 5 February 2002, Appl. No. 51564/99, para. 59; and the friendly settlements reached in the cases of Sulejmanovic and others and Sejdovic and Sulejmanovic v. Italy (Appl. No. 57574/00 and No. 57575/00) (judgment of 8 November 2002 (Eur. Ct. HR (1st Sect.)). 17

Guideline 4. Notification of the removal order 1. The removal order should be addressed in writing to the individual concerned either directly or through his/her authorised representative. If necessary, the addressee should be provided with an explanation of the order in a language he/she understands. The removal order shall indicate: the legal and factual grounds on which it is based; the remedies available, whether or not they have a suspensive effect, and the deadlines within which such remedies can be exercised. 2. Moreover, the authorities of the host state are encouraged to indicate: the bodies from whom further information may be obtained concerning the execution of the removal order; the consequences of non-compliance with the removal order. 18

COMMENTARY 1. This Guideline provides, inter alia, that the removal order should be addressed in writing to the individual concerned, either in person or through his/her authorised representative. If this is not possible, the removal order should be sent by registered mail or other sure means to his/her last known address. Where the registered mail is not claimed, or where the authorised representative states that he/she has lost contact with the person concerned, the authorities should exercise due diligence to ensure that the order be adequately notified. 2. In some jurisdictions, the removal order will be considered to be notified (and thus the delays for seeking the annulment of the order to begin running) even where it is uncertain whether that order has effectively reached the addressee. This should only be the case where, in the course of previous proceedings, for instance the proceedings on the claim to asylum, it has been made clear to the person concerned that this rule would apply, and that he/she therefore should notify the authorities of any change of address, ensuring that he/she can be adequately notified at all times that he/she has been served with a removal order. 3. This Guideline encourages the member states to indicate in the removal order bodies from which further information may be obtained concerning the execution of the order. This information concerns the practical means of compliance with the removal order. The returnee could be given information as to, for instance, whether the state may contribute to the transportation costs, whether the returnee could benefit from any return programmes as referred to in Guideline 1, or whether an extension of the deadline to comply with the order may be obtained. In countries where removal orders do not contain such information, the provision of this information should be achieved without delay by other means. 4. The person, who is obliged to leave the territory of the host state, should be informed of the consequences of not complying with this obligation in order to encourage such a person to leave the territory of the host state voluntarily. 5. Some countries do not issue a separate removal order. The removal order, for instance, may be an integrated part of the refusal for asylum or residence permit, or of any other decision on the right to remain on the national territory. This Guideline should not be seen as an obstacle to this practice. 19

Guideline 5. Remedy against the removal order 1. In the removal order, or in the process leading to the removal order, the subject of the removal order shall be afforded an effective remedy before a competent authority or body composed of members who are impartial and who enjoy safeguards of independence. The competent authority or body shall have the power to review the removal order, including the possibility of temporarily suspending its execution. 2. The remedy shall offer the required procedural guarantees and present the following characteristics: the time-limits for exercising the remedy shall not be unreasonably short; the remedy shall be accessible, which implies in particular that, where the subject of the removal order does not have sufficient means to pay for necessary legal assistance, he/she should be given it free of charge, in accordance with the relevant national rules regarding legal aid; where the returnee claims that the removal will result in a violation of his or her human rights as set out in Guideline 2.1, the remedy shall provide rigorous scrutiny of such a claim. 3. The exercise of the remedy should have a suspensive effect when the returnee has an arguable claim that he or she would be subjected to treatment contrary to his or her human rights as set out in Guideline 2.1. 20

COMMENTARY 1. This Guideline is based on Article 13 ECHR. According to the European Court of Human Rights Article 13 [in conjunction with a substantive provision of the ECHR, in particular with Article 2, Article 3, Article 8 or Article 4 of Protocol No. 4 ECHR] requires that States must make available to the individual concerned the effective possibility of challenging the removal order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality (Eur. Ct. HR, Shebashov v. Latvia (dec.), 9 November 2000, No. 50065/99, unreported; Eur. Ct. HR (4th Sect.), Al-Nashif v. Bulgaria judgment of 20 June 2002 (Appl. No. 50963/99), para. 133). 2. This Guideline also builds on Recommendation No. R(98)13 of the Committee of Ministers to member states on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights, adopted by the Committee of Ministers on 18 September 1998 on the 641st Meeting of the Ministers Deputies. However the Guideline develops further this recommendation by taking into account the fact that other hypotheses than the rejected asylum seeker are included among the situations where Article 13 ECHR guarantees a right to an effective remedy against a removal order. 3. In the countries which do not issue a separate removal order, the returnee will have the possibility of appealing the entire decision concerning his/her right to remain within the territory, including the decision on return. Thus a competent body may review the decision on return, although not separately. Paragraph 1: Although Article 13 ECHR does not require that the remedy be of a judicial nature, it must offer adequate guarantees.the European Court of Human Rights considers that The scope of the Contracting States obligations under Article 13 varies depending on the nature of the applicant s complaint; however, the remedy required by Article 13 must be effective in practice as well as in law. The effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the authority referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective (Eur. Ct. HR (3rd Sect.), Conka v. Belgium judgment of 5 February 2002, Appl. No. 51564/99, para. 75). Paragraph 2: 1. With respect to the required procedural guarantee, it could be noted that in the case of Al-Nashif v. Bulgaria, the Court found that Article 13 ECHR had been violated where the removal order could not be effectively challenged as it was based on reasons related to national security, making it impossible for the competent Court to collect relevant evidence about the alleged national security reasons. The Court held that Even where an allegation of a threat to national security is made, the guarantee of an effective remedy requires as a minimum that the competent independent appeals authority must be informed of the reasons grounding the deportation decision, even if such reasons are not publicly available. The authority must be competent to reject the executive's assertion that there is a threat to national security where it finds it arbitrary or unreasonable. There must be some form of adversarial proceedings, if need be through a special representative after a security clearance. Furthermore, the question whether the impugned measure would interfere with the individual's right to respect for family life and, if so, whether a fair balance is struck between the public interest involved and the individual's rights must be examined (Eur. Ct. HR (4th Sect.), Al- Nashif v. Bulgaria judgment of 20 June 2002 (Appl. No. 50963/99), para. 137-138). 2. The requirement that the time-limits for exercising the remedy shall not be unreasonably short is based on the statement of the European Court of Human Rights in the case of Jabari v. Turkey, where, confronted with the situation of an asylum-seeker who has missed the five-days time-limit within which an application against a removal order had to be launched, and whose application had therefore been dismissed, the Court considered that the automatic and mechanical application of such short time-limit for submitting an asylum application must be considered at variance with the protection of the fundamental value embodied in Article 3 of the Convention (judgment of 11 July 2000, Appl. No. 40035/98, para. 40). 3. The reference made in the second indent of this paragraph to the relevant national rules regarding legal aid seeks to preserve the possibility, for the Member States who so choose, to grant legal aid subject to conditions they see fit, provided these are not discriminatory and remain in compliance with their 21

international obligations. It is to be noted, for instance, that some States limit the scope of free legal aid to persons who have an arguable claim that he or she would be subjected to treatment contrary to his or her human rights as set out in Guideline 2.1. Paragraph 3: 1. The requirement according to which the exercise of the remedy should have the effect of suspending the execution of the removal order when the returnee has an arguable claim that he or she is subjected to treatment contrary to his or her human rights as set out in Guideline 2.1 is based on the judgment delivered by the European Court of Human Rights in the case of Conka v. Belgium (judgment of 5 February 2002, cited above, para. 79). It also seeks its inspiration from the more concise formulation of Recommendation No. R(98)13 of the Committee of Ministers to member states on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights. According to this Recommendation, the execution of the expulsion order is suspended until a decision [by an independent authority having the competence to decide on the existence of the conditions provided for by Article 3 of the Convention] is taken. Recommendation CommDH/Rec(2001)1 of the Commissioner for Human Rights concerning the rights of aliens wishing to enter a Council of Europe member state and the enforcement of expulsion orders (19 September 2001) states that the judicial remedy which may be exercised within the meaning of Article 13 ECHR when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ECHR must be capable of suspending enforcement of an expulsion order, at least where contravention of Articles 2 and 3 of the ECHR is alleged. 2. These recommendations were anticipated by the Parliamentary Assembly of the Council of Europe in Recommendation 1236(1994) on the right of asylum, which insisted that asylum procedures provide that while appeals are being processed, asylum-seekers may not be deported (para. 8, ii), d)), and in Recommendation1327(1997) on the protection and reinforcement of the human rights of refugees and asylum-seekers in Europe, urging the member states of the Council of Europe to provide in their legislation that any judicial appeal should have suspensive effect (para. 8, vii, f)). 22

Chapter III Detention pending removal Guideline 6. Conditions under which detention may be ordered 1. A person may only be deprived of his/her liberty, with a view to ensuring that a removal order will be executed, if this is in accordance with a procedure prescribed by law and if, after a careful examination of the necessity of deprivation of liberty in each individual case, the authorities of the host state have concluded that compliance with the removal order cannot be ensured as effectively by resorting to non-custodial measures such as supervision systems, the requirement to report regularly to the authorities, bail or other guarantee systems. 2. The person detained shall be informed promptly, in a language which he/she understands, of the legal and factual reasons for his/her detention, and the possible remedies; he/she should be given the immediate possibility of contacting a lawyer, a doctor, and a person of his/her own choice to inform that person about his/her situation. 24

COMMENTARY This Guideline is based on Article 5 ECHR. At the time being there is no case-law of the European Court of Human Rights addressing detention issues in the course of removal operations involving several States. However, the Court has said that the notion of deprivation of liberty includes the detention in a transit (international) zone, which the alien may leave if he/she departs for another country willing to accept him/her 5 ; that detention is justified for as long as strictly necessary for the enforcement of the removal order 6. Paragraph 1: 1. This paragraph starts by recalling that a person may be deprived of his/her liberty, with a view to ensuring that a removal order will be executed, only in accordance with a procedure prescribed by law (on this requirement, see Eur. Ct. HR (3rdSect.), Shamsa v. Poland judgment of 27 November 2003 (Appl. No. 45355/99 and no. 45357/99, para. 48-60). 2. The requirement of an individualized examination of the necessity to deprive a person of his/her liberty to ensure compliance with an order to leave the territory is part of a broader protection against arbitrariness in the way detention measures are adopted and derives from Article 5 ECHR 3. The guarantees afforded by Article 5 of the ECHR include that detention of the person should be limited to certain specific circumstances where there are objective reasons to believe that he/she will not comply with the order, for instance if the time limit for departing from the territory has passed and the alien has changed his/her place of residence without notifying the authorities of a change of address, if he/she has not complied with the measures adopted to ensure that he/she will not abscond, if he/she has in the past evaded removal. Detention should only be resorted to where other measures have failed or if there are reasons to believe that they will not suffice. These measures may include the surrendering of the passport or other identity documents to the authorities, an obligation to reside in a particular place or within a certain district, an obligation to report at regular intervals to the authorities, for instance to the closest police station, bail or sureties. As these measures constitute restrictions to the right to move freely and to choose one s residence or to the right to respect for private life, they will have to respect the conditions defined in Article 2(4) of Protocol No. 4 to the ECHR and Article 8(2) ECHR. 4. For purposes of deciding whether or not to detain a person pending removal, the impossibility to reach the person concerned could lead to a presumption that he/she has absconded and therefore should be held to ensure effective removal from the territory, only where the addressee of the removal order has been duly informed that he/she was under an obligation to inform the authorities about any change of residence. Paragraph 2: 1. The second paragraph is based on Article 5(2) ECHR, which provides that Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. The need to offer this information requires either that it is described in written form in a translated document or that an oral interpretation be provided into a language the person concerned understands. The need to inform the person arrested pending his/her removal from the territory about the remedies against the lawfulness of his/her detention derives from Article 5(4) ECHR. Further information on remedies against detention is given in Guideline 9. 2. Member states are advised to ensure that the person detained be promptly informed of his/her rights as granted under the national regulations, beyond the minimal information that must be provided under Article 5(2) ECHR. This requirement can be identified per analogy from the recommendations made by the CPT with respect to persons taken into custody because of a suspicion that they may have committed an offence. The CPT notes in this regard that Rights for persons deprived of their liberty will be of little value if the persons concerned are unaware of their existence (12th General Report (CPT/Inf(92)3), para. 44). This is also valid with respect to persons put into detention to ensure that they will be effectively removed from the national territory. The CPT has taken the view that immigration detainees should be systematically provided 5 Eur. Ct. HR, Amuur v. France judgment of 25 June 1996, para. 42; Eur. Ct. HR (3rd Sect.), Abdel Salam Shamsa v. Poland and Anwar Shamsa v. Poland decisions of 5 December 2002 (Appl. No. 45355/99 and No. 45357/99), and the judgment of 27 November 2003 in those joined cases, para. 44-47. 6 see Eur. Ct. HR (4th Sect.), Al-Nashif v. Bulgaria judgment of 20 June 2002 (Appl. No. 50963/99), para. 92: everyone who is deprived of his liberty is entitled to a review of the lawfulness of his detention by a court, regardless of the length of confinement. 25

with a document explaining the procedure applicable to them and setting out their rights. This document should be available in the languages most commonly spoken by those concerned and, if necessary, recourse should be had to the services of an interpreter (7 th General Report (CPT/Inf(97)10), para. 30). 3. The CPT has repeatedly insisted on the need to recognise a right of access to a lawyer from the very outset of custody. It has also emphasized the point that a doctor should be called without delay if a person requests a medical examination. Finally, the CPT considers that a detained person should have a right to have the fact of his/her detention notified to a third party, from the very outset of police custody. The CPT considers that the period immediately following deprivation of liberty is when the risk of intimidation and physical ill-treatment is greatest (12th General Report (CPT/Inf(92)3), para. 40-43). Where a person is arrested with a view to carrying out the removal of that person from the territory, the immediate possibility of accessing right of access to a lawyer also serves another function, which is to ensure that the remedy available against the deprivation of liberty will be effective: this is important considering that Article 5(4) ECHR requires a speedy process for challenging the lawfulness of detention. It will be noted at last that the possibility for the person arrested with a view to enforcing the removal order delivered against him/her to contact a lawyer and a third person to inform that person of the arrest, is of even higher importance here, because of the potentially irreversible character of the execution against that person of the removal order; therefore, any security concerns, or concerns for the effectiveness of the investigation, which may justify that certain limitations be brought to this right with regard to persons arrested upon the suspicion that they have committed criminal offences, will not normally be present here, or will normally not have the same weight. 26

Guideline 7. Obligation to release where the removal arrangements are halted Detention pending removal shall be justified only for as long as removal arrangements are in progress. If such arrangements are not executed with due diligence the detention will cease to be permissible. 28

COMMENTARY The rule formulated in this Guideline derives from the fact that Article 5(1) ECHR imposes a restrictive reading of the situations where such deprivation of liberty is authorised, as these are exceptions to the fundamental right to liberty and security. The European Court of Human Rights has recalled that any deprivation of liberty under Article 5 para. 1(f) ECHR will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 para. 1(f) (Eur. Ct. HR, Chahal v. the United Kingdom, judgment of 15 November 1996, para. 113). Indeed, this implies that when it appears that the removal of the person within a reasonable period is unrealistic, the detention ceases to be justified and release must follow (Eur. Commiss. HR, Caprino v. the United Kingdom, Appl. No. 6871/75, dec. of 3 March 1978, YB ECHR, 21, p. 285, 295-296 (and DR, 12, p. 14)). The Human Rights Committee adopts a similar attitude under Article 9(1) of the International Covenant on Civil and Political Rights. In Jalloh v. the Netherlands, it expressed the view that Article 9(1) ICCPR had not been violated, because Once a reasonable prospect of expelling [the author of the communication] no longer existed his detention was terminated (communication No. 794/1998, final views of 23 March 2002). The Human Rights Committee also considers that Article 9 ICCPR excludes detention for extended periods when deportation might be impossible for legal or other considerations (see e.g., Concluding Observations relating to the United Kingdom, (2001) UN doc. CCPR/CO/73/UK, para. 16). 29